How to Fight Maintenance Cases.

1. Section 125
of the CrPC: Meant to provide no-fault maintenance to wife from husband.

2. Section 24
of the Hindu Marriage Act, 1955 (HMA): Though gender
neutral, is largely used by women to extract maintenance from their husbands in
pendency of a divorce.

3. Section 25
of the HMA: Meant to provide alimony to women from divorce.

4. Section 18
of the Hindu Adoptions and Maintenance Act: Another
provision for maintenance to wives.

5. Domestic
Violence Act: This Act also is used to get maintenance from husbands

The concept of ‘maintenance’ in India is
covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section
125) and the personal laws. This concept further stems from Article 15(3)
reinforced by Article 39 of the Constitution of India, 1950 (the
'Constitution'). Under Indian law, the term ‘maintenance’ includes an
entitlement to food, clothing and shelter, being typically available to the
wife, children and parents. It is a measure of social justice and an outcome of
the natural duty of a man to maintain his wife, children and parents, when they
are unable to maintain themselves.1 The object of maintenance is to prevent
immorality and destitution and ameliorate the economic condition of women and
children. Maintenance can be claimed under the respective personal laws of
people following different faiths and proceedings under such personal laws are
civil in nature. Proceedings initiated under Section 125 however, are criminal
proceedings and, unlike the personal laws, are of a summary nature and apply to
everyone regardless of caste, creed or religion.2 The object of such
proceedings however, is not to punish a person for his past neglect. The said
provision has been enacted to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and have a moral
claim to support.3 Maintenance can be claimed either at the interim stage,
ie, during the pendency of proceedings, or the final stage.

Conditions for claiming maintenance

Under the provisions of Section 125, the
burden lies upon the wife, ie, the claimant, to prove that the husband, ie, the
other party, has ‘sufficient means’ and has ‘neglected or refused to maintain’
her and that she is ‘unable to maintain’ herself. If an individual is capable
of earning, irrespective of whether he actually has the means or not, it can be
concluded that he has sufficient means. The onus then shifts onto the husband,
to prove that he does not have sufficient means to provide the maintenance. The
phrase ‘unable to maintain herself’ is with reference to the means that were
available to the deserted wife while she was living with her husband. An
abandoned wife or divorced woman need not be reduced to a destitute state
before filing for maintenance for herself and her children. The test is whether
the woman is in a position to maintain herself in a similar manner as in her
husband’s home.

Persons entitled to receive maintenance

Maintenance may be granted to dependent
children, parents and legally wedded wives, including but not limited to a
divorced spouse, mistress, illegitimate children, etc. In certain cases under
personal law, the Indian courts have adopted a lenient view and granted the
husband the right to receive maintenance. Such right however, is conditional
and typically conferred upon the husband, only if he is incapacitated due to
some accident or disease and rendered incapable of earning a livelihood. Such
an entitlement is not available to an able person, doing nothing for a living
or a ‘wastrel’. The remedy under Section 125 is speedy and inexpensive, as
compared to personal laws. The provision relating to maintenance under any
personal law is however, distinct and separate from Section 125. There is no
conflict between both the legal provisions. A person is entitled to maintenance
under Section 125 despite having obtained an order under the applicable
personal law.

Quantum of maintenance

Maintenance covers not merely food,
clothing and shelter, but also includes other necessities. The quantum and type
of necessities covered within the scope of maintenance may vary, depending on
the status, financial position and number of dependents, etc and is at the
discretion of the court. Prior to passing an order under Section 125, the court
does take cognizance of the amount of maintenance already ordered under the
personal law. The reasoning is based on the premise that the wife is entitled
to live as per the standard and status of her husband.

Judicial precedents

There is a spate of judicial precedents
on the issue of maintenance. Until recently, the term ‘wife’ was interpreted in
a narrow manner, since the intention of the judiciary was to protect destitute
and harassed women. The Indian courts held that only a legally married woman
was entitled to claim maintenance. The change in perception vis-à-vis social
relationships and the growing trend of live-in relationships has influenced the
Indian mindset. This is apparent from a recent case decided by the Delhi High
Court, in a personal law matter,4 wherein the couple had lived like a married couple
for 14 years and the man had concealed the fact that he was already married.
Furthermore, the woman had taken the responsibility of running the household as
a housewife, treated the man as her husband and had borne and bred two of his
children. The view taken by the court was that on account of the nature of the
relationship and the aforementioned facts, the woman should not be deprived of
her right to maintenance, under the personal law applicable to Hindus (which
constitutes almost 80 per cent of Indians). The court further expressed that
denial of maintenance under such circumstances would amount to putting a
premium on or rewarding the man for defrauding the woman by concealing his
first marriage. It was further recorded that for the purpose of granting
maintenance under the personal law, women placed in the position of second
wife, can be treated as legally wedded wives and are entitled to maintenance.
In a case decided on 14 November 2008, the Apex Court has recently ruled that
maintenance necessarily encompasses a provision for residence and has therefore
ordered that the woman be provided with a residential facility similar to that
which she had been accustomed in the past.5

Conclusion

It is evident from the recent judicial
decisions that the Indian courts have been progressively liberal in deciding
cases pertaining to maintenance. The bone of contention however is whether a
mistress can become entitled to receive maintenance merely from the factum of
living with a married man, coupled with the dispute as to whether the bigamy is
legally permissible. While it appears from the decisions passed under the
personal laws that the same may be possible, judicial decisions pertaining to
Section 125 continue to uphold the view that maintenance can be claimed only by
a lawfully wedded wife.